Citation Nr: 1048444
Decision Date: 12/30/10 Archive Date: 01/11/11
DOCKET NO. 08-25 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for hypertension, including
as secondary to service-connected diabetes mellitus, type II.
2. Entitlement to service connection for a heart disability,
including as secondary to hypertension or service-connected
diabetes mellitus, type II.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Lipstein, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to May 1968. The
Veteran served in the Republic of Vietnam between May 1967 and
May 1968.
This matter comes to the Board of Veterans' Appeals (Board) from
a March 2008 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A
Notice of Disagreement was received in March 2008, a Statement of
the Case was issued in July 2008, and a Substantive Appeal was
received in August 2008.
The Veteran testified at a hearing before the Board in March
2009. Additional evidence was submitted at that hearing, along
with a waiver of any right to initial RO consideration of that
evidence.
The issue of entitlement to a total rating on the basis of
individual unemployability (TDIU) has been raised by the
record, but has not been adjudicated by the Agency of
Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it, and it is referred to
the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran testified that he was diagnosed with hypertension
upon his separation from service and that he then continued
treatment with his private physician, Dr. Williams, in the Fall
of 1968. He then states he had continuous treatment for
hypertension thereafter.
It appears the Veteran's service treatment records were
associated with his VA claims file in the late 1960s, perhaps in
connection with a claim for dental treatment. Those records do
not, however, contain a copy of his separation examination. It
does not appear that additional requests for service treatment
records were made in connection with the current claim (or at any
time since the 1960s). In light of his insistence that he was
diagnosed with hypertension upon separation from service, the
Board concludes another attempt should be made to obtain any
outstanding service treatment records.
As for post-service treatment, the Veteran testified that his
initial private physician, Dr. Williams, was deceased and that he
was unable to get any of those medical records. However, he also
submitted a release for VA to request his records for treatment
he had received through the Health Alliance Plan since 1970. In
response to the RO's request, the insurance company indicated
that they did not maintain members' medical records and that
requests had to be made directly to the physician(s). The RO did
not advise the Veteran that records were not obtained from the
Health Alliance Plan, so he did not have an opportunity to
complete releases for any other physicians. Any post-service
medical records showing treatment for hypertension are critical
in this case, since they would go to the question of whether the
Veteran's hypertension was manifested shortly after his
separation from service.
The Veteran also contends that his current hypertension is
secondary to the service-connected diabetes mellitus, type II.
The Veteran underwent a VA examination in January 2008. Although
the VA examination provided an opinion with regard to whether the
Veteran's current hypertension is related to the Veteran's
service-connected diabetes mellitus, type II, it did not provide
an opinion with regard to whether the Veteran's current
hypertension is aggravated by the Veteran's service-connected
diabetes mellitus, type II. Also, the underlying rationale for
that opinion, in part, was the Veteran's reported history of
having hypertension for decades prior to onset of diabetes - a
history that is not currently corroborated by the evidence of
record. Under the circumstances, the Board believes that a VA
examination with opinion is necessary to comply with 38 C.F.R.
§ 3.159(c)(4).
Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to
add hairy cell leukemia and other chronic B-cell leukemias,
Parkinson's disease, and ischemic heart disease to the list of
diseases associated with exposure to certain herbicide agents.
The intended effect of this amendment is to establish presumptive
service connection for these diseases based on herbicide
exposure.
In part, the final rule provides for presumptive service
connection for "Ischemic heart disease (including, but not
limited to, acute, subacute, and old myocardial infarction;
atherosclerotic cardiovascular disease including coronary artery
disease (including coronary spasm) and coronary bypass surgery;
and stable, unstable and Prinzmetal's angina)". Note 3, at the
end of § 3.309, provides: "For purposes of this section, the
term ischemic heart disease does not include hypertension or
peripheral manifestations of arteriosclerosis such as peripheral
vascular disease or stroke, or any other condition that does not
qualify within the generally accepted medical definition of
Ischemic heart disease."
Private treatment records from Providence dated in October 2004
reflect that the Veteran was assessed with coronary artery
disease. Private treatment records dated in October 2004 reflect
that the Veteran was diagnosed with new onset congestive heart
failure. There are also multiple treatment records related to
ischemia, including private treatment records from Henry Ford
Health System dated in February 2007 reflecting consideration for
inferolateral ischemia. Private treatment records from Henry
Ford Health System dated in February 2007 reflect that the
Veteran was assessed with angina. Private treatment records from
Henry Ford Health System dated in March 2007 reflect that the
Veteran was assessed with cardiomegaly.
The Board is thus presented with multiple different diagnoses
related to heart disability. In light of the foregoing, a VA
examination and opinion (based on a review of the claims file) is
necessary to comply with 38 C.F.R. § 3.159(c)(4) (2010).
The Board notes that the Veteran has voiced an argument that his
current heart disability is secondary to the service-connected
diabetes mellitus, type II. The Veteran underwent a VA
examination in January 2008. The VA examiner opined that the
Veteran's history of pulmonary edema and congestive heart failure
is more likely related to hypertension and hypertensive
cardiovascular disease. Although the VA examination provided an
opinion with regard to whether the Veteran's current heart
disability is related to the Veteran's service-connected diabetes
mellitus, type II, it did not provide an opinion with regard to
whether the Veteran's current heart disability is aggravated by
the Veteran's service-connected diabetes mellitus, type II.
Under the circumstances, the Board believes that a VA examination
with opinion is necessary to comply with 38 C.F.R. § 3.159(c)(4).
Accordingly, the case is REMANDED for the following actions:
1. Advise the Veteran that a request for
medical records to Health Alliance Plan
was unsuccessful. Ask that he complete
releases for any treatment he received
prior to 2000 for hypertension or
diabetes mellitus. Then, request those
records, and, if any requests are
unsuccessful, advise the Veteran of
that fact and provide him an
opportunity to submit the records.
2. Request the Veteran's service treatment
records from the National Personnel
Records Center. If the request does
not yield a copy of his 1968 separation
examination, then provide the Veteran
notice of the failure to obtain this
particular record, and provide him an
opportunity to submit the record
himself.
3. Only after obtaining the above medical
and service records, to the extent
available, should the Veteran be
scheduled for a VA examination with a
physician in the cardiology
department. The purpose of the
examination is to determine the nature
and etiology of any current
hypertension and heart disease. It is
imperative that the claims file be made
available to the examiner for review in
connection with the examination.
Following a thorough evaluation, during
which all indicated tests are
performed, the examiner should:
a) diagnose any current hypertension
and cardiovascular disorders that
exist;
b) specifically state whether the
Veteran has ischemic heart disease. If
ischemic heart disease is shown, the
following etiology opinions are needed
only on the question of hypertension.
c) opine whether hypertension or any
cardiovascular disorder present (other
than ischemic heart disease) is at
least as likely as not related to the
Veteran's service;
d) if the Veteran's hypertension or any
cardiovascular disorder present (other
than ischemic heart disease) is not
likely related to service, opine
whether any condition is at least as
likely as not caused or aggravated by
his service-connected diabetes
mellitus, type II;
NOTE: aggravation is defined for legal
purposes as a worsening of the
underlying condition versus a temporary
flare-up of symptoms.
The examiner must provide detailed
rationale, with specific references to
the record, for the opinions.
It is imperative that the claims file
be made available to the examiner for
review in connection with the
examination.
4. After completion of the above, the RO
should review the expanded record. The
RO should then undertake a merits
analysis of the claim of service
connection for hypertension, including
as secondary to service-connected
diabetes mellitus, type II. The RO
should then undertake a merits analysis
of the claim of service connection for
a heart disability, including as
secondary to hypertension or service-
connected diabetes mellitus, type II.
Unless the benefits sought are granted,
the Veteran should be furnished a
supplemental statement of the case and
be afforded an opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The Veteran and his representative have the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).